On 3 June 2025, Brufjel Shipping Co Ltd (Brufjel) filed an application against Santana Maritime Ltd (Santana) and Intresco Ltd (Intresco) for the arrest of the cargo vessel Gottlieb (ex Santana), flying the Liberian flag, with IMO number 9449388, allegedly owned by Santana and operated by Intresco, anchored in the approach zone to the Port of Lisbon, awaiting the allocation of a berth. Brufjel alleged that the Gottlieb rammed its ship, the Wagon B, on 21 May 2024 after completing bunkering operations in the Port of Ceuta, Spain, and sought substantial damages.

On 4 June 2025, an order was issued inviting Brufjel to provide documentary evidence proving ownership of the ship under art 3 of the Arrest Convention 1952. Brufjel reported that it had not found evidence of the current owner of the ship; accepted the ownership information contained in the Equasis database as valid; and requested rectification of its initial application so that the proceedings could continue against Faust Shipping & Trading Ltd (Faust). Brufjel argued that a maritime claim was at stake; hence arrest could be granted, even if the debtor was an entity other than that which owned the ship, by virtue of art 3.4 of the Convention.

Information was requested from the administration of the Port of Lisbon about ownership of the Gottlieb, which confirmed that the disponent owner was Faust, and that the ultimate owner was Hat Denizcilik Nakliyat Ve Dis Tic Ltd. On 6 June 2025, a preliminary order was issued summarily dismissing the arrest on the basis that the vessel had been sold.

Dissatisfied with this decision, Brufjel appealed.

Held: Appeal dismissed.

It may happen - as in this case - that the owner of a ship to which a maritime claim relates and who is responsible for its payment subsequently sells that asset. In this situation, the question arises as to whether it is possible to arrest the vessel that was sold after the maritime claim arose.

In this regard, legal scholarship has held that, if the maritime claim is privileged, whether by virtue of an international treaty or based on a rule of domestic law, the arrest of the offending ship is still permissible, since one of the hallmarks of maritime liens is precisely that they allow for a droit de suite, that is, the granting to the creditor of a real right over the thing, which allows the creditor to execute its claim at the expense of the vessel even after it was sold.

On the one hand, art 9 of the Arrest Convention 1952 denies the possibility of creating maritime liens based exclusively on the Convention itself. It should also be noted that the expression used in art 9: 'maritime liens which do not exist under such law' refers to 'the law applied by the Court which was seized of the case'. On the other hand, art 2 of the Arrest Convention allows a judge to decide whether to order or refuse ship arrest, an activity that must be carried out taking into account the plaintiff’s allegations, which must include a coincidence between the shipowner and the debtor.

Therefore, in summary, it can be stated that, within the scope of the Arrest Convention, the arrest of a ship whose owner is not personally obliged to pay a maritime debt must meet two requirements: (i) it must be authorised by the Convention itself; and (ii) the applicable domestic law must allow the arrest, so that the executive sale of the ship can take place.

It can be inferred from the opinions expressed throughout the process of drafting the Arrest Convention, as well as from the errors made in drafting, that the Contracting States' clear intention was not to create maritime liens that were not already provided for in another international legal treaty or in the applicable rules of domestic law, a desire that was ultimately reflected in art 9 of the Convention.

Hence, if the claimant does not allege in its first pleading that its claim is privileged and that the vessel does not belong to the debtor, its claim must be summarily rejected in light of the provisions of art 9 of the Arrest Convention. However, if the claimant makes such an allegation, the judge must accept the proceedings and order the arrest if the existence of the maritime claim can be demonstrated, even if the vessel was subsequently sold by the debtor.

It is important to assess the validity of the grounds put forward to argue that the Arrest Convention created an atypical security interest. Given the international nature of maritime law, it is always necessary to bear in mind both the international and domestic legal regimes. In matters of ship arrest, the typical separation between the operation and ownership of seagoing vessels involves a multiplicity of interested parties connected with maritime navigation, which justifies the attempt to harmonise the rules applicable in this regard.

The natural divergence of interests between shipowners, on the one hand, and shippers and insurers, on the other, led the former to attempt to establish obstacles to the system of ship arrest, while the latter advocated its liberalisation. This difficulty is compounded by differences between the major legal systems. Indeed, while the English system only authorised seizure based on maritime claims, with only the ship bearing a maritime claim and no other ship, even if held by the same shipowner, being subject to seizure, the European systems allowed the possibility of arresting any ship, owned by any shipowner, for any type of claim.

Regarding the interpretation of and compromise between the above rules, two approaches have emerged: one, which advocates a restrictive interpretation, such that the seizure of a vessel owned by a non-debtor of the claim is only admissible in the case of a privileged claim or a mortgage; another, which provides a literal, broad interpretation of art 3 of the Arrest Convention, allowing a new security interest in the vessel in respect of which the credit was established.

The better view is that the Arrest Convention does not establish new rights, recognising only the possibility of arrest when such rights exist according to the lex fori (in this case, recognised under domestic Portuguese law or the Convention on Maritime Liens and Mortgages 1926). The Convention did not create new atypical real security interests, or confer new legal substantive claims, but was strictly procedural in nature.

Here, according to the lex fori - Portuguese domestic law - the seizure of the Gottlieb, in the absence of proof of a maritime lien or other real security interest, would never lead to its conversion into a garnishment. Therefore, it is clear that the conclusion reached by the lower Court cannot be disproved, namely that the claims listed in art 1.1 of the Arrest Convention 1952 are not, in themselves and by the mere fact of having been listed therein, privileged claims, since the underlying purpose of the Convention was not to create new maritime liens, but rather to indicate, or limit, those maritime claims that would allow the vessel to be arrested.